Expect Enforcement

“It’s time to put the ‘H’ for ‘Health’ back in ‘MSHA,’” Dr. Greg Wagner recently told the annual meeting of the American Public Health Association. Wagner, the Deputy Assistant Secretary for Policy at the Mine Safety and Health Administration (MSHA), will not be alone in this pursuit. Newly confirmed Assistant Secretary of Mine Safety and Health Joseph P. Main has promised to “beef up the health part of MSHA,” through aggressive efforts to reduce miner exposures to coal mine dust and silica. While past rulemaking on these issues has been stagnant, Main and Wagner intend to accelerate them. More immediate is the expected increase in enforcement of existing rules.

Main, a veteran safety director for the United Mine Workers of America, has not minced words when discussing the need for increased enforcement. He called Bush administration enforcement efforts “weak” and has praised the concept of expanding the frequency of mine inspections. Wagner, a Harvard-educated respiratory physician, has stressed the need to use sampling technologies and predictive modeling to target better health enforcement.

MSHA has announced multiple initiatives, including nationwide “Dust Sweeps,” in which MSHA will devote a portion of each inspection to dust-related issues. Main has expressed interest in reducing the silica standard consistent with the National Institute for Occupational Safety and Health (NIOSH) criteria which relied heavily on research conducted by Wagner and called for a 50-percent reduction in the exposure limit. While revising the standard will take time, aggressively enforcing violations of the existing exposure levels will not.

Adapting to this health-centered enforcement regime requires three primary tools: knowledge, action, and skepticism. Permissible exposure limits for a wide variety of regulated substances can be found at 30 C.F.R. Parts 56 (surface metal/non-metal mines), 57 (underground metal/non-metal mines), 70 (coal mine dust and diesel exhaust), and 71 (other gases and asbestos). These limits follow the threshold limit values set by the American Conference of Governmental Industrial Hygienists (ACGIH), which MSHA incorporated by reference in 1972 and 1973 (see 30 C.F.R. §§ 75.322, 71.700, 70.1900, 57.5001, and 56.5001). Employers should train workers on hazards, act to protect against them, and sample for contaminants to understand their risks. Respiratory protection programs should be reviewed for compliance with regulatory mandates, along with corresponding employee training and disciplinary programs.

Having the requisite skepticism entails holding the Secretary of Labor to her burden of proving the inspector has taken an accurate sample that actually exceeds a regulatory limit. The agency must demonstrate that the procedure used to obtain personal air sample results is valid for enforcement. Mandatory procedures for air samples include calibrating the pump, requiring the miner to wear the sampling cassette within the “breathing zone” (approximately 12 inches from the face or nose), and ensuring that the sample was not contaminated. Even tipping the sampling cassette or knocking it into a pile of material can cause oversized particles to invade the cassette, yielding a high result that contains non-respirable or foreign materials. Lab procedures to prevent “phantom” results due to contaminants or errors affecting compliance determinations must be examined. Questions asked in pre-hearing discovery or carefully targeted Freedom of Information Act (FOIA) requests can identify errant sampling and analysis methods. Deviations from valid procedures can void the sample and vacate an alleged violation.

Skepticism should extend to lab analysis and tests. MSHA labs must participate in Proficiency Analysis Testing (PAT) to maintain accreditation. In the PAT process, standardized samples are sent to dozens of labs for analysis to measure a lab’s results and methods. MSHA (as well as Occupational Safety and Health Administration and NIOSH) labs participating in PAT can produce silica test results that are 20 to 40 percent off the average test result. Similarly, lab calibration data records, which are regularly kept for all lab equipment, as well as lab audits and incident reports, may be helpful in contesting citations for invalid samples. This is especially true where the audit or incident report is close in time to the sample that produced the citation. All of this information — including the PAT results — can be obtained through a FOIA request or in the process of challenging a citation.

If MSHA is to take a rigorous new enforcement approach, MSHA and operators must also make sure that accurate results are used for enforcement by observing sampling procedures, taking pictures of the sampled individual and equipment, and updating employees on knowledge of toxic hazards and prevention techniques will all be essential tools in this new era of health enforcement.

Henry Chajet is a partner and Christa Lee Rock is an associate with Patton Boggs LLP. Chajet may be reached at 202-457-6511 or via e-mail at hchajet@pattonboggs.com. Rock may be reached at 303-894-6141 or via e-mail at crock@pattonboggs.com.